The
doctrine of qualified immunity shields from liability public
officials, including police officers, whose conduct does not
violate clearly established federal statutory or
constitutional rights. It is a strong, but not impenetrable,
shield. After careful consideration of the record in this
case, viewed in the light most favorable to the plaintiff, we
conclude that qualified immunity is not available: given the
state of the preexisting law, the unconstitutionality of a
police officer's actions in taking a person into
protective custody, handcuffing that person, transporting him
to a police station, and jailing him without probable cause
to believe that he is incapacitated should have been
apparent. Consequently, we vacate the district court's
entry of summary judgment in the defendant's favor and
remand the case for further proceedings consistent with this
opinion.

I.
BACKGROUND

Inasmuch
as the court below resolved this case at the summary judgment
stage, we rehearse the facts in the light most favorable to
the nonmovant (here, the plaintiff), consistent with record
support. See DePoutot v. Raffaelly, 424 F.3d 112,
114 (1st Cir. 2005).

On the
morning of July 11, 2014, plaintiff-appellant Peter Alfano
and two friends set out to attend a concert at the Xfinity
Center in Mansfield, Massachusetts. They travelled to
Mansfield on a chartered bus that provided round-trip
transportation from downtown Boston to the concert venue. The
threesome consumed beers both on the bus and at a tailgate
party upon their arrival. All told, Alfano (by his own
admission) drank between six and eight beers over a span of
some four to six hours.

When it
came time for the concert to begin, Alfano and his friends
made their way to a security checkpoint at the entrance of
the amphitheater. Alfano was feeling the effects of the
alcohol that he had consumed, but he did not feel out of
control. As he reached the checkpoint, two security guards
asked him to step out of the line and escorted him to a
separate holding area on the Xfinity Center property. There,
Alfano was turned over to defendant-appellee Thomas Lynch, a
lieutenant from a neighboring town's police department,
who was working a security detail at the Xfinity Center.
According to Lynch, the security guards told him that they
thought that Alfano might be incapacitated and, thus, took
him aside for further scrutiny.

Massachusetts
law permits police officers to take "incapacitated"
persons into civil protective custody. Mass. Gen. Laws ch.
111B, § 8; see id. § 3 (specifying, as
pertinent here, that an "[i]ncapacitated" person is
one who is both intoxicated and, "by reason of the
consumption of intoxicating liquor is . . . likely to suffer
or cause physical harm or damage property"). To evaluate
whether Alfano was in fact incapacitated, Lynch - acting
under color of state law - asked Alfano to perform a series
of field sobriety tests. The parties dispute how Alfano
performed on these tests. They agree, however, that he
refused to take a breathalyzer test. Following that refusal,
Lynch handcuffed Alfano and placed him in protective custody.

At
first, Alfano was shackled to a bench. He was later
transported to the Mansfield police station (some miles away)
and confined in a holding cell. Roughly five hours later, he
was released. By that time, the concert was over.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
matter did not end there. In July of 2015, Alfano sued in the
federal district court.[1] His complaint alleged, in substance,
that Lynch lacked probable cause to take him into protective
custody and, accordingly, abridged his Fourth Amendment right
against unreasonable seizures. After a course of pretrial
discovery, Lynch moved for summary judgment on qualified
immunity grounds. Over Alfano&#39;s opposition, the district
court granted Lynch&#39;s motion. See Alfano v.
Lynch, No. 15-12943, 2016 WL 2993615, at *3 (D. Mass.
...

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